ga

January 05, 2004

Missing Witness Instructions

Here's a new case from the Second District, granting a new trial to the plaintiff whose missing witness instruction was refused by the trial court: Kersey v. Rush Trucking, Inc.

The court summarized the elements necessary for the missing witness instruction as follows:

The instruction should be given only when a foundation is presented which suggests that: (1) the witness or evidence was under the control of the party to be charged and could have been produced by reasonable diligence; (2) the witness or evidence was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the evidence or the witness's testimony would have been favorable to him; and (4) no reasonable excuse for the failure to offer the evidence or to produce the witness has been shown.